Summary: Claimant
has been diagnosed with fibromyalgia and the insurer accepted her condition
as an occupational disease related to her employment painting decoy ducks.
In a prior decision, the WCC held the insurer could not withdraw that
acceptance to challenge claimant's condition. Now at issue is claimant's
request for benefits under section 39-72-405, MCA (1993), which allows
an award of up to $10,000 when an occupationally diseased claimant suffers
a wage loss and meets certain statutory conditions.

Held: Claimant
easily meets three of four statutory criteria: she suffers from an occupational
disease, she is not totally disabled, and she has a wage loss where she
was forced to work part-time only as a result of her condition, then terminated
employment following a dispute with her employer over hours of work. The
final criteria involves interpretation of the statute as to whether a
determination by a medical panel is necessary regarding whether it was
medically advisable for claimant to transfer from her job as a result
of her condition. Though the statute is not a model of clarity, the Court
interprets section 39-72-405, MCA (1993) to require a medical panel determination
only when the wage loss results from a cessation of employment by the
employee (resignation), not from discharge or transfer. As for the amount
of the award, the full $10,000 is awarded where claimant's wage loss is
$2038.40 annually if her current new-job wages are compared to her time-of-injury
wages, and $7,600 annually if the part-time wages she earned post-injury
with the time-of-injury employer are compared to full time wages she would
have earned but for the disease.

Topics:

Constitutions, Statutes,
Regulations and Rules: Montana Code Annotated: section 39-72-405, MCA
(1993). Claimant, whose fibromyalgia condition was accepted by the
insurer as an occupational disease, seeks compensation under section
39-72-405, MCA (1993) for wage loss allegedly resulting from her inability
to work full time in her time-of-injury job. Claimant easily meets three
of four statutory criteria: she suffers from an occupational disease,
she is not totally disabled, and she has a wage loss. The final criteria
involves interpretation of the statute as to whether a determination
by a medical panel is necessary regarding whether it was medically advisable
for claimant to transfer from her job as a result of her condition.
Though the statute is not a model of clarity, the Court interprets section
39-72-405, MCA (1993) to require a medical panel determination only
when the wage loss results from a cessation of employment by the employee
(resignation), not from discharge or transfer. As for the amount of
the award, the full $10,000 is awarded where claimant's wage loss is
$2038.40 annually if her current new-job wages are compared to her time-of-injury
wages, and $7,600 annually if the part-time wages she earned post-injury
with the time-of-injury employer are compared to full time wages she
would have earned but for the disease.

Occupational Disease:
Indemnity (39-72-405) Awards. Claimant, whose fibromyalgia condition
was accepted by the insurer as an occupational disease, seeks compensation
under section 39-72-405, MCA (1993) for wage loss allegedly resulting
from her inability to work full time in her time-of-injury job. Claimant
easily meets three of four statutory criteria: she suffers from an occupational
disease, she is not totally disabled, and she has a wage loss. The final
criteria involves interpretation of the statute as to whether a determination
by a medical panel is necessary regarding whether it was medically advisable
for claimant to transfer from her job as a result of her condition.
Though the statute is not a model of clarity, the Court interprets section
39-72-405, MCA (1993) to require a medical panel determination only
when the wage loss results from a cessation of employment by the employee
(resignation), not from discharge or transfer. As for the amount of
the award, the full $10,000 is awarded where claimant's wage loss is
$2038.40 annually if her current new-job wages are compared to her time-of-injury
wages, and $7,600 annually if the part-time wages she earned post-injury
with the time-of-injury employer are compared to full time wages she
would have earned but for the disease.

The matter before the Court
is the second of two petitions filed by petitioner, Theda Bea Bouldin
(Theda).

Theda suffers from fibromyalgia.
In her first petition to this Court, she sought a ruling that she is entitled
to occupational disease benefits on account of her condition. Liberty
Northwest Insurance Corporation (Liberty) had accepted her fibromyalgia
claim, but thereafter changed its mind and denied liability. In an October
8, 1996, Partial Summary Judgment and Decision, I determined that lacking
proof of fraud, mutual mistake, subsequent injury, or some other sufficient
legal ground, Liberty's acceptance of Theda's claim for occupational disease
benefits on account of her fibromyalgia precluded it from thereafter contesting
its liability for that condition. That determination was certified as
final and was not appealed.

On May 21, 1997, Theda filed
a second petition. That petition was also captioned "Petition for Hearing,"
but the Court gave it the same docket number. The second petition and
subsequent documents are found in Volume II of the Court file.

In her second petition, Theda
requests benefits under section 39-72-405, MCA (1993).

Liberty resisted the second
petition, and the matter went to trial on August 25, 1997, in Helena,
Montana. Theda represented herself and was sworn and testified. Liberty
was represented by Mr. Larry W. Jones (Larry). Exhibits 3, 5, 6 and 8
through 12 were admitted without objection. The Court reserved ruling
on the offers of Exhibits 1, 2, 4 and 7.

The Court provided the parties
an opportunity for post-trial briefs. The final brief was submitted on
September 10, 1997, at which time the case was deemed submitted.

Having considered the testimony
at trial, the depositions, the exhibits, and the arguments of the parties,
the Court makes the following :

FINDINGS OF FACT

1. Initially, as a matter of
fact, the Court complements both Theda and Larry on their cooperation
and the manner in which they presented this case to the Court. Larry never
attempted to take advantage of the fact that Theda is unrepresented. He
has been helpful to her and the Court throughout this proceeding. He has
set a good example for other lawyers who may become involved in pro sé
matters. On her part, Theda has represented herself in a reasoned and
rationale manner. She has complied with the Court's procedural rules.
In all proceedings before the Court, she has been poised and articulate.

2. Claimant has suffered from
fibromyalgia since at least early 1995. In early 1995 she submitted a
claim for compensation which Liberty accepted as an occupational disease.

3. In 1995 claimant was working
for Big Sky Carvers. Her job entailed painting animal decoys, mostly ducks.
The decoys varied in size from life-size ducks to miniatures. She was
provided finished, painted decoys as guides to her painting.

4. As a result of her condition,
Theda was off work from March until late May 1995.

5. Dr. Leonard Ramsey, who
is a family practitioner, is claimant's treating physician.

6. At the end of May 1995,
Theda returned to work with a release from Dr. Ramsey. In releasing claimant
to work, Dr. Ramsey wrote:

In my experience with cases
such as Theda's, I often find they must modify their work schedule,
work environment, and work load significantly in order to avoid severe
headaches and pain. I will not be able to predict to a high degree of
certainty what her work schedule may ultimately look like, but I would
suspect that 3 days a week at 4 to 6 hours a day would be the maximum
that Theda might be able to undertake at her old job. And, she would
have a requirement for very frequent breaks where she could get up and
stretch and move about in order to avoid aggravation of the fibromyositis.

I understand Theda is going
to try to return to work this Friday, the 26th of May. Might I suggest
initially that she work only 2 hours a day, that she takes a break every
half-hour for at least 10 minutes and get up and move around, free herself
of her work area and position. After the 1st 2 to 3 days of work at
this very limited schedule, it may be appropriate to advance her to
4 hours per day, again with every half hour a 10 minute break, keeping
a careful eye on how her pain responds in an overall sense.

(Ex. 2.)

7. Theda returned to work full
time in the fall of 1995. However, she continued to experience pain from
her fibromyalgia. Dr. Ramsey recommended that, within her normal 40-hour
work week, she be allowed time off for doctors' appointments.

8. On January 4, 1996, Theda
received a written warning from Deanna J. Field (Field), comptroller and
personnel manager of Big Sky Carvers. The warning concerned her absences
from work. (Ex. 8.) The memo indicated that the absences were unexcused.

9. Sometime thereafter, Theda
experienced increased pain while lifting a box. Dr. Ramsey took her off
work for two weeks.

10. On February 29, 1996, Theda
received another written warning concerning time off. The warning noted
that Theda was seeing a physical therapist but asked that she reschedule
her appointments after her regularly scheduled shift. (Ex. 10.) The warning
went on to state, "I expect you to take whatever steps are necessary to
be actively at work for as many hours per day and per week as is possible."

11. On March 8, 1996, Dr. Ramsey
wrote that Theda "[m]ay return to work part time only - i.e. - 4 hour
days /5 days wk or 6 hour days/3 days per week. I do not anticipate her
being able to work full time in the forseeable [sic] future." (Ex. 3.)

12. Theda initially received
approval from her immediate supervisor to work three non-consecutive days.
Thereafter, a dispute arose between Theda and Field concerning her work
schedule. While acknowledging that claimant was limited to part-time work,
Field insisted that claimant work five consecutive four hour days. She
thereafter relented and approved three, six hour days but insisted that
they be worked consecutively.

13. Theda terminated her employment
with Big Sky Carvers because of the dispute over her work days.

14. Big Sky Carvers did not
dispute Dr. Ramsey's restriction of Theda to work part time.

15. Theda thereafter sought
other employment. On April 22, 1996, she was employed by Northern Line
Layers (Northern), a construction company which specializes in the laying
of underground pipe.

16. Theda works as a secretary
for Northern. She is a full-time employee, although she has lost work
on account of the seasonal nature of the business and a contract dispute
between Northern and its major customer. Claimant's hours are flexible.
She is not directly supervised.

17. At the time Theda terminated
her employment with Big Sky Carvers, Theda was earning $7.33 an hour.
Her initial wage at Northern was $7.00 an hour. In July 1997, she received
a raise to $7.25 an hour.

18. Big Sky Carvers gave its
employees regular raises. Theda believes that she would presently be making
$8.66 an hour if still working for Big Sky Carvers. Field opined that
claimant would be at $8.23 an hour if still working for the company. I
find $8.23 to be a more realistic estimate.

19. Theda is presently earning
$7.25 an hour with Northern Line Layers.

2. Liberty objected to Exhibits
1, 2 and 4 on relevancy grounds. At the time of trial, the Court reserved
its ruling on the objections. Having now read the exhibits and considered
the context in which they are offered, I find Exhibits 1, 2, and 7 are
relevant to claimant's entitlement under section 39-72-405, MCA. Those
exhibits are therefore admitted and have been considered by the Court
in reaching its decision. Exhibit 4 is not relevant and has been disregarded.

3. This Court has previously
determined that Theda's entitlement to benefits is determined by the 1993
version of the Occupational Disease Act (ODA). Order Regarding Applicable
Law (March 4, 1997).

4. The ODA makes no provision
for permanent partial disability benefits. It does, however, provide a
special benefit for workers who are disabled from their usual occupation.
Section 39-72-405(2), MCA (1993), provides:

39-72-405. General
limitations on payment of compensation.

. . . .

(2) When an employee in
employment on or after January 1, 1959, because the employee has an
occupational disease incurred in and caused by the employment that is
not yet disabling, is discharged or transferred from the employment
in which the employee is engaged or when the employee ceases employment
and it is in fact, as determined by the medical panel, inadvisable for
the employee on account of a nondisabling occupational disease to continue
in employment and the employee suffers wage loss by reason of the discharge,
transfer, or cessation, compensation may be paid, not exceeding $10,000,
by an agreement between the insurer and the claimant. If the parties
fail to reach an agreement, the mediation procedures in Title 39, chapter
71, part 24, must be followed.

Theda is seeking the maximum
benefit permitted by the section.

5. As an initial matter, Theda
must establish that she is eligible for the benefit. The elements she
must satisfy are as follows:

(1) She must suffer from
an occupational disease. It has previously been determined that she
does.

(2) She must not be totally
disabled as a result of her injury. This element is not in dispute as
she continues to work.

(3) She must either have
been discharged or transferred "from the employment in which . . . she
is engaged" or cease employment and it must be determined
by a medical panel that her occupational disease makes it inadvisable
for her to continue in the employment. This element requires further
discussion.

(4) She must suffer a wage
loss. She has satisfied this element.

The third element is the only
element that warrants further discussion.

Since no medical panel opinion
was presented, the Court must determine whether a medical panel opinion
is a prerequisite to Theda's claim. Unquestionably, the panel requirement
applies if her claim is based on her ceasing employment. However, if her
claim is based on a discharge or transfer, then the Court must determine
whether the panel requirement is applicable. If the panel requirement
is not applicable to a discharge or transfer, then the Court must determine
if claimant was discharged or transferred within the meaning of the statute.

6. The meaning of a statute
must be gleaned, if possible, from the statute itself. If the statute
is plain and unambiguous on its face, it must be construed and applied
as written. Boegli v. Glacier Mountain Cheese Co.,230
Mont. 426, 429, 777 P.2d 1303, 1305 (1989).The statutory
construction issue in this case is whether the medical panel proviso applies
to just a cessation of work or applies as well to a discharge or transfer.

In construing a statute,
courts must first resort to the ordinary rules of grammar, and in the
absence of a clear contradictory intention disclosed by the text, must
give effect to the legislative intent according to those rules, and
according to the natural and most obvious import of the language, without
resorting to subtle and forced construction to limit or extend their
operation.

Doull v. Wohlschlager,
141 Mont. 357, 365, 377 P.2d 758, 764 (1963).

The section is one long, compound
sentence with multiple verbs, subjects, conjunctions and clauses. Diagraming
the sentence, even if it were within my abilities, would be nightmarish.
My own experience with the legislative process suggests that grammarians
are rarely, if ever, consulted when drafting statutes. My initial analysis
of the sentence suggests that it is grammatically incorrect in any event.

One principle of statutory
interpretation that could guide my construction is the rule that ". .
. a relative clause must be construed to relate to the nearest antecedent
that will make sense." Dussault v. Hjelm, 192 Mont. 282, 285,
627 P.2d 1237, 1239 (1981) (quoting from State v. District Court of
the First Judicial Distr., 103 Mont. 487, 501, 63 P.2d 141, 144 (1936);
State v. Centennial Brewing Co., 55 Mont. 500, 513, 179 P. 296,
298 (1919).). Applying that principle literally would require that the
requirement for a medical panel opinion be limited to cessation of employment
since that is the clause which immediately precedes the requirement. But
the cited cases deal with instances not involving the type of sentence
at issue herein, and I decline to read the principle rigidly or out of
the contexts in which it has been applied.

Nonetheless, I interpret the
medical panel provision as applying to a cessation (resignation) of employment
by the employee and not to a termination or transfer of the employee by
the employer. In simplified form, the section provides, "When an employee
. . . is discharged or transferred . . . or when
the employee ceases employment . . . ." § 39-72-405(2), MCA, (1993), emphasis
added. The medical panel requirement is part of the second "when" clause.
Limiting the panel requirement to that clause is logical. Where an employee
is transferred or terminated by the employer, there is less likelihood
that the employee is working at less than her capabilities. On the other
hand, a cessation or termination of employment by the employee may or
may not be due to physical limitations attributable to the occupational
disease.

7. Theda ultimately terminated
her employment; however, by that time she had already been restricted
to part-time work and the restriction had been accepted and implemented
by her employer. Thus, the question I must answer is whether placing Theda
on part time constituted a "transfer" within the meaning of the statute.
(It did not constitute a discharge since a discharge is commonly understood
to mean termination of all employment with the employer.)

The obvious purpose of the
statute is to provide some sort of compensation for claimants who experience
a partial wage loss as a result of their occupational diseases. The statute
is expressly predicated upon a loss of wages but does not encompass total
disability. Placing an employee on part-time status causes a wage loss.
Moreover, the job is no longer a full-time position. I therefore conclude
that a "transfer" includes a transfer from full-time to part-time employment.
Dr. Ramsey's notes, and his prior records and testimony, indicated that
the limitation to part-time employment at Big Sky Carvers was more likely
than not a permanent one. Theda has therefore satisfied all requirements
for an award under section 39-72-405, MCA (1993).

8. The final issue I must decide
is the amount of the award. Since the statute references wage loss, it
is plainly intended to provide compensation to OD claimants who suffer
wage losses. Thus, the amount of the wage loss provides some guidance
in making the award. In this case it is the only factor I need to consider.
If the wage loss is measured by Theda's reduced work schedule while still
working for Big Sky Carvers, then her wage loss equaled $146.60 weekly
(based on a reduction from 40 to 20 hours a week)(1),
or approximately $7,600 annually. If her current wages are compared with
what she would be earning for Big Sky Carvers, her wage loss is $2038.40
annually based on 2,080 hours a year. While section 39-72-405, MCA (1993),
does not give me guidance on an applicable period in determining wage
loss, I find the period referenced in section 39-71-703, MCA, of 350 weeks
at a benefit rate of 66% of wages received at the time of injury, helpful.
Applying the 66% to the claimant's wage loss, she would realize the $10,000
maximum in approximately 383 weeks. I therefore conclude that she is entitled
to the maximum, $10,000 benefit allowed under section 39-72-405, MCA (1993).

JUDGMENT

1. The Court has jurisdiction
over petitioner's request.

2. Liberty shall pay petitioner
the sum of $10,000 as compensation due her under section 39-72-405, MCA
(1993).

3. Petitioner is entitled to
costs in connection with her present petition. She shall file and serve
a verified memorandum of costs within 10 days of this judgment. Liberty
shall thereafter have 10 days in which to respond to her memorandum. The
matter of costs will then be deemed submitted for decision.

4. This JUDGMENT is certified
as final for purposes of appeal pursuant to ARM 24.5.348.

5. Any party to this dispute
may have 20 days in which to request a rehearing from these Findings of
Fact, Conclusions of Law and Judgment.

1. She was
earning $7.33 an hour. On a 40-hour a week basis, her weekly earnings
were $293.20. Since she was limited to 5 four hour days or 3 six hour
days, her work week was halved. Thus, her wage loss was one-half of $293.20.